IN
THE CONSTITUTIONAL COURT OF SEYCHELLES

Wavel
Ramkalawan of

St Louis, Mahe Petitioner

Versus

1.
The Republic (herein
represented

By The Attorney General)

2. The Attorney
General of

National
House, Victoria Respondents

Constitutional
Court
Case No 1 of 2001

………………………………………………………………………………………………

(Before
A.R.Perera J (Presiding), N.Juddoo J, D.Karunakaran J)

………………………………………………………………………………………………

Mrs
A.Georges with Mr B. Georges for the Petitioner

Mr A.Fernando
Attorney General with Miss F.Laporte for the Respondent

JUDGMENT

Perera
ACJ

The
petitioner, a member of the National Assembly, was summoned as a
witness before a Committee set up under Standing Order 80(1),
“to
investigate
an incident
which occurred in the precincts of the National Assembly during the
morning tea break of Tuesday 11^th
November 1997 between himself (Hon.
Wavel Ramkalawan)
and Hon. Barry Faure.”
The Committee, after inquiry, submitted its Report dated 18^th
November 1997 to the National Assembly. The Committee concluded that
there were verbal provocations and insults by both members,
but that
the physical assault by Hon. Ramkalawan, on Hon. Faure, was
disproportionate to the provocation offered. They therefore

recommended that –

(1)
Provocation
and insult
on personal basis in the Chamber and in the precincts of the
Assembly be reprimanded
by the Speaker.

(2)
In
the circumstances of threats
and physical assaults,
strict punitive measures be applied.

(3)
The
“offending member Hon. W.Ramkalawan” be subject to “strict
disciplinary measures under the provisions of Section 28 of
the
National Assembly (Privileges,
Powers and Immunities)
Act.

(4)
The
Speaker invokes order 91 of the standing orders in order
to
initiate action, against Hon. W.Ramkalawan under Section 23 (a) of
the
said
Act.

It
is not in dispute that consequent to the 3^rd
recommendation, the petitioner was suspended from seven sittings of
the National Assembly with loss of salary and allowance during
that
period. Such punishment was imposed under Section 28 of the National
Assembly (Privileges,
Powers and Immunites,
Act)
(hereinafter
referred to as the “National
Assembly Act”) as
a “contempt
of the
Assembly”,
and not for the offence of “assault”
under Section 23 (a) thereof.

The
National Assembly accepted the 4^th
recommendation of the Committee and referred the finding of assault,
to the Attorney General under Standing Order 91(c), upon a
motion
that was passed by 21 votes for, with no vote against (see page 35 of
National Assembly proceedings of 18^th
November 1997). Consequently, criminal proceedings were instituted
before the Magistrates’ Court in case no C799/98, on 12^th
September 1998, charging the petitioner with the offence of Assault
Occasioning Actual Bodily Harm, under Section 236 of the Penal
Code.
That case is still pending before that court.

Section
15(1) of the National Assembly Act provides that “every
witness”
before the Assembly or an Authorised
Committee
“who
shall answer fully
and
faithfully any question
put to him”
by such Committee to
its satisfaction,
shall be entitled to receive a certificate stating that such witness
“was
upon his
examination
so required
to answer
and did answer”
such question. Under sub-section (3) thereof, on the production of
such certificate a civil or criminal, court shall stay proceedings

against
such witness
for any Act or thing done by him before
the time and revealed by the evidence of such witness.

It
is not in dispute that the petitioner did not obtain such a
certificate from the Chairman of the Committee before the report
was
presented to the National Assembly, on 18^th
November 1997. However, the petitioner obtained such a certificate
from Mr Georges Bibi, who was the ex-chairman of the said Committee,

on 18^th
November 1998. That was one month after the criminal case was filed
in the Magistrates’ Court, and nearly eight months after
a new
Assembly had been elected after a General Election. The Learned
Senior Magistrate rejected that certificate on the ground
that Mr
Bibi was “functus
officio” and
that hence, it was invalid. That decision was upheld by the Supreme
Court in revision, and also subsequently by the Court
of Appeal. The
Court of Appeal upholding the decisions of the Magistrates’ Court
and the Supreme Court as regards the validity
of the certificate,
proceeded to state that-

“The
Speaker of the National Assembly may, however, in terms of Section 35
of the Act “at all times exercise the powers conferred
upon him by
this Act even though the Assembly may have been prorogued or
dissolved”.

This
Court in a previous ruling unanimously decided that such
pronouncement was obiter
dicta,
as the matter before that court was limited to a consideration of
Section 15(1) and (2) as regards the validity of the certificate.

That Court of Appeal itself confirmed this when they stated that –

“At
this stage, the relevant portions of Section 15 are Sections (1) and
(2) since our present inquiry is focussed on the validity
or
otherwise of the certificate that was issued by Mr Georges Bibi,
Erstwile Chairman of the
National
Assembly Committee”.
The petitioner had however interpreted that pronouncement as
a finding
of
the Court of Appeal, and in his letter dated 17^th
November 2000 to the Speaker, claimed that that Court had nonetheless
stated that (he) was
entitled to a certificate
and that the same could be issued under the hand of the speaker. The
Speaker, by letter dated 5^th
January 2001 replied that having read the judgment of the Court of
Appeal, and gone through the report of the committee of inquiry,
and
the judgment of the Supreme Court, he had reached the following
conclusions.

“1. Since
I did not chair the Committee of Inquiry nor was a member of that
Committee, I am not in a position to say whether the
requirements of
SS(i) of S.15 were met, nor do I believe I can issue the certificate
under S.S.(2) which clearly states that in
case of a witness before a
committee, the certificate shall be under the hand of the chairman
thereof.

2. 
   However,
   even if I was entitled to issue a certificate in compliance with
   S.15 (1) and the Court of Appeal Judgment on page 3
   refers to
   satisfying the requirements of S.S.(1) of S.15, on a reading of the
   report of the Committee of inquiry it cannot be
   said that you
   answered fully and faithfully questions put to you to
   their satisfaction.

   
   

2. 
   I am not
   convinced that S.35 of the Act is relevant to this case.”

   
   

In paragraph 9 of
the Petition, the petitioner summarising that reply avers that –

“By
a letter dated 5^th
January 2001, the Speaker, contrary

to the
said
finding
of the Court of Appeal,
refused to issue the said certificate on the grounds, inter
alia,
that he was not entitled to issue the said certificate and that, even
if he had been so entitled, he was not of the opinion that
the
petitioner had fully and faithfully answered questions put to him”.

In paragraph 10 of
the petition, the petitioner avers that the Speaker erred in his
decision that he was not entitled to issue the
said certificate and
also that the petitioner had not fully and faithfully answered
questions put to him by the Committee.

Further
in paragraph 11 of the petition, the petitioner avers that the
Speaker was “obliged
in law”
to issue such certificate as he had admitted the offence of assault
and that thereby fully and faithfully answered the questions
put to
him by the Committee.

The prayers in the
petition therefore are-

1. 
   That the
   refusal of the Speaker to issue the said certificate contravenes
   Article 19 of the Constitution by denying him a fair
   trail.

   
   

2. 
   That his trial
   for the offence of assault before the Magistrates’ Court
   contravenes Article 19 of the Constitution.

   
   

The
alleged convention of Article 19 is based on the “refusal
of the
Speaker
to issue the certificate”,
and the consequent continuance of the trial before the Magistrates’
Court.

It
is manifest in the prayer for the said declarations in the petition
that there is an invitation to this court to review the conclusions

reached by the Speaker as regards the issuing of the certificate.
It was however submitted by Learned Counsel for the petitioner
that
it was not felt necessary to determine the issue of the power of the
court to review that decision as the declaration sought
is under
Article 46 (5) (a) of the Constitution, and not under Article 46(5)
(c) thereof. That would involve a mere declaration
simpliciter,
and not one followed by the issuance of a writ or directions to
enforce the charter of Fundamental Rights. Learned Counsel relied
on
the Court of Appeal decision in Citra
Hoareau
v. The
Government of Seychelles
(S.C.A.
no 42 of 1999)
in this respect. In that case this court interpreted Articles 130(4)
(a) and (b) disjunctively, and ruled that a petitioner could
not
pray only for the issuing of a writ under sub-article (c) without
praying for a declaration either under sub-article (a) or
(b). The
Court of Appeal accepted the contention of Counsel for the Appellant
and held that “implicit
in her client’s remedy
under 130(4) (c) for writs of certiorari
and mandamus to issue (was) a prayer for a finding
……
that the Act or omission
…… constitutes
a contravention of the Constitution”.
That decision only established that one could pray for a remedy
such as the issuing of a writ, leaving the Court to gather the

alleged contravention from the pleadings. That Court, did not hold
that a prayer for a declaration was not necessary. Even in
a case
for judicial review, there must first be a finding that the decision
of a Minister or a statutory authority is ultra
vires
or illegal for any of the writs prayed for to be issued. The prayer
in that case was only for a writ of certiorari to quash the
decision
of a Minister and for a writ of mandamus to compel him to perform a
particular duty. In the present case, the petitioner
has prayed only
for two declarations. He has admitted in paragraph 13 of the
petition that the exercise by the Speaker of his
powers to issue the
said certificate is not subject to the jurisdiction of any Courts and
hence he is bound by that decision.
This is based on the “ouster
clause”
contained in Section 34 of the National Assembly Act. However
Learned Counsel for the petitioner submitted that, all that the

petitioner was asking the Court to do, was not even to consider
whether the Speaker was right or wrong, but to examine the
proceedings
of inquiry independently, and to declare that as the
petitioner had admitted the assault, he had answered “fully
and faithfully”
and hence was entitled to a certificate, but as such certificate has
not been issued, his right to a fair trial has been contravened.

Learned Counsel
for the petitioner further submitted-

“Thus,
in making the declarations the court will impliedly be saying that
the Speaker ought to have issued the certificate and that
the
Court, if possessed of
the
Speaker’s powers,
would have issued the certificate. This may appear to be a review of
the Speaker’s decision but actually it is not, because
the
satisfying of the two conditions are matters
external to any action of the Speaker
which the Court is today in
as good a position as
the
Speaker
to appreciate, and the issuing of the certificate is an automatic
non-discretionary consequence of the conditions being satisfied.”

“If
therefore the granting of the declarations sought gives the
appearance of the Court reviewing the Speaker’s decision, that
is
merely an appearance and not a fact because the decision need not be
reviewed for the declarations to be granted”.

The
gist of that submission was that the satisfaction of the two
conditions required to be entitled to a certificate, namely that
(1)
the petitioner was a witness before the Committee and (2) that he
answered the questions put to him fully and faithfully were
matters
which the Speaker could have considered from the report of the
Committee of inquiry, and which this court as well could
consider
independently. The petitioner contends that as the inquiry was
regarding an assault on a member, and as he admitted that
offence
when he was called as a witness, obviously he had answered fully and
faithfully on that issue, and hence he was automatically
entitled to
a certificate under Section 15(1).

The
Learned Attorney General conceded that this Court could refer to the
proceedings before the Committee. He however submitted
that in view
of paragraph 13 of the petition where the ouster clause in Section 34
is admitted, the Court ought not
to review the decision of the Speaker.

It
was submitted by Learned Counsel for the petitioner that the
Petitioner and Hon. Faure should have been called before the
committee
as “parties”
or “defendants”,
and not as “witnesses”.
But before a fact finding Committee without any Penal Powers,
everyone summoned to appear would be “witnesses”.
In
fact, the Chairman of the Committee of inquiry by letter dated 11^th
November 1997 (exhibit
AG2)
addressed to the petitioner requested him to attend a meeting of the
Committee “to
assist the Committee
in
its investigations”.
Section
14 of the National Assembly Act refers to “every
person
summoned
to attend to give evidence.”
Generally
such witnesses may become “parties”
or
“defendants”
to the incident inquired into only upon the conclusion of the
investigation, and on the basis of the findings. Hence though
summoned
as a “witness”,
or
someone
who could assist in the investigation”
the certificate under Section 15 (1) is available to any person
against whom an accusation relating to the Commission of an offence

has, or can be levelled, on the basis of his testimony, which in the
normal course may result in a prosecution.

The
rationale of Section 15 of the National Assembly Act, is the
privilege against self-incrimination. One of the Fundamental values

enshrined in criminal jurisprudence is that an accused person cannot
be required to facilitate his conviction by providing evidence

against himself. In Seychelles, this is a Fundamental Right
recognized in Article 19(2) (g) of the Constitution. Section 14,

read with Section 15 of the said Act is intended to encourage persons
to come before the National Assembly or an authorised Committee,
and
to give evidence
“fully and faithfully” without
being apprehensive of Civil or Criminal liability. The purpose of
this privilege is to protect the Assembly collectively,
and the
members individually, from any obstruction or interference of their
functions, thereby maintaining the Assembly’s independence
and
authority. In the case of Bradlaugh
v. Gossett
(1884) 12. Q.B.D. 271,
the Court refused to declare void an order of the House of commons
preventing a member who had been elected from taking oath.

Similarly, in The
King
v.
Graham
Campbell, Exparte Herbert
(1935) 1.KB 594,
it was held that the House of Commons had the privilege of
regulating its own internal affairs and procedure, including the sale

of intoxicating liquor without a licence, through its employees in
the Refreshment Department of the House, and that although it
was an
offence under the Licensing Act, such offence fell within the
privileges of the House so that no Court of Law had jurisdiction
to
interfere.

What then is the
position of the judiciary and the legislature in Seychelles?
Basically, there is a separation of powers, and the
Courts should not
interfere with the Internal Affairs of the National Assembly
including their privileges, immunities and powers.

However, Eskine
may states that-

“After
some three and a half centuries, the boundary between the competence
of the law Courts and the jurisdiction of either House
in matters of
privilege is still not entirely determined. …… the courts on the
other hand regarded the Lex
Parliamenti
not as a particular law but as part of the law of the land, and
therefore within their judicial notice. There might be areas of
the
application of privilege within which it was proper for either House
exclusively to make decisions, but
particularly – though not solely – where the rights of third
parties were concerned, the Courts considered that it was for
them to
form their own view of the law of parliament and to apply it”.

In
the present case, the petitioner is not a “third
party”
in that sense. Although he is a member of the Assembly, he is an
accused before a court of law as an ordinary citizen. The Act
of
assault in the precincts of the Assembly was an offence under Section
23(a) of the National Assembly Act. This Act of assault
was referred
to the Attorney General under Standing Order 91(c) upon a motion
being duly passed to that effect, for prosecution
under the National
Assembly Act as “a
specified
offence”
under that Act. However the Attorney General exercising his
discretion under Standing Order 91(d) prosecuted him under the
Penal
Code, as an ordinary citizen. The vital issue is whether the
petitioner was charged under the Act or the Penal Code, he
had the
right to fair hearing guaranteed by Article 19 of the Constitution.
The prosecution of the petitioner is now a matter
completely outside
the province of the National Assembly. This Court has already
accepted the submission of Learned Counsel for
the Petitioner that
the fairest hearing, is to be able to argue that one ought not to
have a hearing at all.

The petitioner
avers that the resulting position of the Speaker’s reply is that he
has been deprived of the possibility of obtaining
a certificate,
which will stay criminal proceedings against him in the Magistrates’
Court. This Court is vested with the sole
jurisdiction in respect of
matters relating to the application, contravention, enforcement or
interpretation of the Constitution.
In terms of Article 5, thereof,
the Constitution is the Supreme Law of Seychelles and any other law
found to be inconsistent with
it would be, to the extent of the
inconsistency void. The petitioner is before this Court on an
alleged contravention of Article
19 of the Constitution. This
complaint has to be considered by this court. In doing so, it
becomes necessary to examine the
source of such alleged
contravention. The petitioner avers that it is the refusal of the
Speaker to grant a certificate under
Section 15(1) of the said Act.
Here the provisions of the Constitution, which is the Supreme Law
must prevail over Section 34
of the National Assembly Act to suppress
the mischief and to advance a remedy. Hence although Section 34
grants immunity to the
Assembly and the Speaker to exercise their
powers and functions vested in them without interference by the
court, yet when a person’s
Fundamental Right is alleged to have
been contravened by the exercise of such power, this court cannot
refuse to consider such
complaint on the ground that the decision of
the Speaker or of the Assembly is not justiciable. To do so would be
to abdicate
the powers vested in this court by the Constitution.

In
the case of The
Queen
v. Holl
(1881)
Vol. 7 Page 575,
the Court held that a certificate issued by commissioners inquiring
corrupt practices at an election was a “certificate of their

judgment which was conclusive and that their refusal to give such
certificate, whether that judgment was right or wrong could not
be
reviewed by a writ of mandamus. That was on the basis that such writ
was available to compel a public duty which had been imposed
by law.
But if that duty was owed by the crown or a servant of the crown,
then mandamus could not issue. But in the present matter,
the
petitioner does not seek relief under Article 46(5) (c), but under
Article 46(5) (a) alone. This Court is therefore concerned
only with
the alleged contravention of the Constitution.

Article
45 of the Constitution provides that the Chapter on the Seychelles
Charter of Fundamental Human Rights and Freedoms “shall
not be interpreted so as to confer on any person or group the right
to engage in any activity aimed
at
the
suppression
of a right or freedom contained in the Charter”.
Article 46 proceeds to give a right to a person who claims that a
provision of the Charter has been or is likely to be contravened
in
relation to him by any law, Act or omission, to apply to this court.
This court has already ruled that the petitioner has the
locus
standi
to prosecute the petition before court. Hence despite the immunity
contained in Article 34 of the National Assembly Act, and the
General
reluctance on the part of the courts to interfere with internal the
affairs of the legislature, a court vested with jurisdiction
over
Constitutional matters is in no way fettered from examining, through
not reviewing any Act or omission of the National Assembly,
the
Speaker, or any officer in determining an allegation of a
contravention of a Fundamental Right or for that matter any other

right vested by the Constitution in any person. In the case of
Fotofili
and Others
v. Siale
(1988)
L.R.C (Const) 102, the Privy Council,
in an Appeal from Tonga, held inter
alia,
that although in England an Act of Parliament could not be
challenged on the ground of irregular parliamentary procedure, the

position was different under a written Constitution, where, if on a
true Construction of the Constitution some event was made
a
condition for the validity of a law, the Court had jurisdiction to
examine whether the condition had been met even if that involved
an
inquiry into the internal proceedings of the Assembly.

In
the case of the Attorney
General
v. Ramgoolam
(1993)
SCJ 198
(Mauritius),
the respondent was absent from the sittings of the National Assembly
for a continuous period of three months without the leave
of the
Speaker as required by Section 35(1) (e) of the Constitution. The
Attorney General sought a determination from Court whether
the seat
of the Respondent had become vacant. The Court held inter
alia
that –

“Upon
the contention that it would not be proper for the Court to hear
evidence which might breach the privileges of the National
Assembly
in the application of the standing orders made in pursuance to
Section 48 of the Constitution; in Mauritius, our Constitution
had
conferred on the Supreme Court a fundamental jurisdiction concerning
Constitutional matters unknown to the Courts in the United
Kingdom,
and hence Eskine may necessarily had to be read subject to the
particular jurisdiction which the Constitution had so vested
in the
Supreme Court”.

It
was further held “that
where Parliament exercise sovereign powers under the Constitution and
the Courts are empowered to exercise a particular jurisdiction
which
itself requires an enquiry into the exercise of these powers by
Parliament, then the jurisdiction of the Courts must be exercised
to
the appropriate extend in order to enable it to determine the
particular question that is before it”.

In
the case of Tong
v. Taniera
& Or
(1987) L.R.C. (Const)
1, the leader of the Christian Democratic Party of Kiribati applied
to the court for a declaration that the Speaker of the House
of
Assembly had been in breach of Section 77(2) of the Constitution in
not summoning the Assembly upon being advised to do so by
1/3 of the
members. The court inter
alia
held that by virtue of Section 88(1) of the Constitution (which
is similarly worded as Section 46(1) of our Constitution)
it had jurisdiction to consider the reasons given by the Assembly.
The Court after considering the reasons found that the Speaker
had a
discretion in the matter and that he had exercised that discretion
upon “relevant
considerations”.

The
principle established in those cases therefore was that the Court had
jurisdiction to consider a decision of the House Assembly
to
ascertain the validity of an allegation of a contravention of a
Constitutional right.

In
the present case, examining the reasons adduced by the Speaker in his
reply dated 5^th
January 2001 for the purpose of ascertaining whether there is a
contravention of Article 19 of the Constitution as alleged by the

petitioner, I would first consider the 3^rd
reason as to the relevancy of Section 35 of the National Assembly
Act. That section envisages a position where the Speaker continues

to hold office despite the prorogation or dissolution of the National
Assembly. The Learned Attorney General submitted that the
original
House of Assembly (privileges,
immunities and powers)
Ordinance 1975 came into force on 3^rd
November 1975 after the promulgation of the Constitution of 1975
which provided in Article 38(2) thereof that “the
Speaker held office during her
Majesty’s
pleasure,” and
that he
shall not vacate his office by
reason
only of a
dissolution
of the House of Assembly.

This position was the same under the Constitution of the 1^st
Republic 1976, save that the Speaker held office at the pleasure of
the President. In the Constitution of the 2^nd
Republic 1979, the Speaker was appointed by the President. The
Constitution of the 3^rd
Republic promulgated in 1993 introduced for the first time a
provision that the Speaker and Deputy Speaker shall be elected by
the
National Assembly from
among the members of the Assembly.
(Article 83(1).)

Section 35 of the
National Assembly Act provides that –

“For
the purposes of this Act, the Speaker may, at
all times
exercise the powers conferred
upon him
by this Act
even
though the Assembly may
have
been prorogued or dissolved.

The
powers conferred on the Speaker by the National Assembly Act however,
are powers to safeguard the privileges, immunities and
powers of the
Assembly and its members. Under Section 15(1), he has the power to
issue a certificate under his hand, to a witness
who had answered
questions put to him fully and faithfully before
the Assembly of the House.
The Court of Appeal however extended the meaning of that Section to
include “the
powers
conferred
upon the former Committee Chairman”
and, in his absence, the clerk who shall exercise such powers from
the records of the Assembly. These dicta are based on the provisions

of Section 36(2) (b) of the said Act which states that when the
Speaker is absent, the powers vested in him shall be vested in
the
Clerk.

The
Court of Appeal stated thus-

“It
is obvious that when exercising the Speaker’s powers,the Clerk will
do so from records of the Assembly.
In our view, as the Speaker presides over the proceedings of the
Assembly, once the Chairman of an authorised Committee tables
the
Committee’s report before the Assembly (and thereby ceases to be
its Chairman) the Speaker “shall” exercise such
powers under Section 15(2), including
these conferred upon the former Committee Chairman
and in
his absence, the Clerk shall exercise such powers from the records of
the Assembly.
This interpretation is consonant with the purpose of Section 15
which entitles the witness to a certificate either to be issued
at
once or subsequently”.

With respect, this
pronouncement was based on the following premises that-

1. 
   A certificate
   under Section 15(1) can be issued by the Speaker or the Clerk from
   the records, on an objective consideration of
   the findings.

   
   

2. 
   The words “to
   its satisfaction” in Section 15(1) and the words “conferred upon
   him” in Section 35 could be considered
   objectively.
   

   
   

3. 
   That the
   office of the Speaker continues in perpetuity, and a Speaker elected
   by an Assembly consequent to a General Election
   held subsequent to
   the dissolution of the Assembly in which the inquiry was held, would
   also be eligible to issue a certificate
   in respect of an inquiry
   held under the Chairmanship of the previous Speaker, or that of an
   authorised Committee set up under
   his Chairmanship.

   
   

4. 
   That a witness
   was entitled to a certificate at any time irrespective of whether
   the Assembly had been prorogued, dissolved and
   even where a new
   Assembly had been convened after a General Election.

   
   

The rationale of
the pronouncement was that if in the “absence”
of
the Speaker, the Clerk could under in Section 36(2) (b), exercise the
powers vested in the Speaker by Section 15 and 31, by reference
to
records, the Speaker himself was in a better position to do the same.

Section 15(2) in
particular, provides that a certificate in respect of a witness
before
the Assembly be under the hand of the Speaker,
and that of a witness before
a committee be
under the hand
of the Chairman thereof.

Section
31 protects persons responsible for publications authorised by the
Assembly. Such an authorisation would usually be a
matter of
record. Hence a person sued in a Civil or Criminal case could obtain
a certificate under
the hand of the Speaker
certifying such authorisation, and such certificate when produced
before the Court will not only stay proceedings but also would
deem
such proceedings to be finally determined.

The powers of the
Speaker under Section 15(2) and Section 31 are limited to the issuing
of the respective certificate. Both certificates
are based on
matters of records arising from proceedings before the Assembly.
They need not be based on any subjective consideration
of the
Speaker. Hence, as was submitted by Learned Counsel for the
petitioner, the satisfying of the two conditions in Section
15(1) are
matters external to any action of the Speaker.

The power to issue
certificates under Section 15(2), is therefore vested in the Speaker
only when they arise from records of evidence
of witnesses before the
Assembly and in the case of Section 31, from reports, papers,
minutes, votes or proceedings in which the
Assembly has authorised
any publication.

It was the view of
the Court of Appeal that since the Speaker presides over the
proceedings of the Assembly, once the Chairman of
an authorised
Committee tables the report, the Speaker, would be able to exercise
his powers under Section 15(2) including those
conferred upon the
former Committee Chairman. However, in his absence, the Clerk shall
exercise such powers from the records of
the Assembly. Hence it was
envisaged that the Clerk could also issue a certificate by reference
to the record. In the case of
the Speaker, the Court was of the view
that after the Chairman of an authorised Committee hands over the
report of the Committee,
the Speaker could have the power to issue a
certificate in the same way as he would have done in respect of a
witness before Assembly.
But in case of a witness before the
Assembly, a certificate would be issued under the hand of the Speaker
only if the Assembly
was satisfied that he had answered questions put
to him fully and faithfully. Hence in the same manner, if the
Speaker was to
issue a certificate in respect of a witness before an
authorised Committee, there must be sufficient material on record to
conclude
that the Committee was satisfied that such witness had
answered fully and faithfully. In the absence of such material on
record,
the Speaker would not be able to substitute his own opinion
on a review of the record if such opinion is inconsistent therewith.

In those circumstances, the Clerk would be in no better position.

In
the case of Holl
(supra), Bramwell LJ
posed the question – “If
the certificate of the
Commissioners
is to be an expression of their judgment and opinion, how can you
substitute the judgment and opinion of any other
tribunal?”
The Learned Judge himself answered, that the legislature would not
have intended that where a Court or Tribunal is of opinion that
a
person has answered bona-fide, and the Commissioners remain of
opinion that he did not, such Court of Tribunal should certify
a
falsity. Applying these dicta to the instant matter, if the material
on record discloses that the witness has satisfied the
conditions in
Section 15(1), the Speaker cannot substitute a contrary opinion.
Whether he had done it or not is a matter to be
considered by the
Court when determining the alleged infringement of a Constitutional
right.

Another matter
that arose for consideration was whether a certificate under Section
15(2) could be obtained at any time. The certificate
becomes
necessary only if a Civil or Criminal case is filed against a witness
who had testified. In terms of Article 2271 of the
Civil Code, a
Civil action is prescribed after a period of five years. In criminal
cases however, there is no such period of prescription.

In
the instant case, the Assembly referred the report of the Attorney
General on 18^th
November 1997, but the criminal proceedings were initiated only on
12^th
September 1998, 10 months later. That reference was recommended by
the Committee in its report and was approved by majority vote
in the
Assembly on 18^th
November 1997. Hence the petitioner ought to have been aware of the
impending prosecution and applied for the certificate from
the
Speaker forthwith as by then the Committee, and its Chairman had
become functus
officio.
However the entitlement to the certificate could be exercised at
anytime when the need arises, subject however to statutory
limitations.

In
submitting that Section 35 of the National Assembly Act permitted the
Speaker to issue a certificate under Section 15(1) despite

prorogation or dissolution of the Assembly, Learned Counsel for the
petitioner relied on Article 83(3) (a) of the Constitution
which
provides that the person holding the office of Speaker or Deputy
Speaker shall vacate that office “when
the National Assembly first meets after the holding of a General
Election.”
However Sub Article (b) thereof provides that the Speaker or Deputy
Speaker shall vacate office “where
the
person
ceases to be a member of the National Assembly”.

Sub
Article (a) recognises that after dissolution of the National
Assembly, the Speaker continues to hold office as Speaker with
all
powers vested in him until a “new”
Speaker is elected when the Assembly first meets after a general
election. Sub-Article (b) provides a position inconsistent with
Sub
Article (a) when it provides that the Speaker, who is necessarily a
member of the National Assembly ceases to be a member upon

dissolution of the Assembly. What then is the status of the Speaker
after dissolution of the Assembly?

It is clear that
both provisions cannot co-exist. The office of Speaker is an
integral part of a parliamentary system, and its
practice.

In the
Constitution of Mauritius, Section 32(3) provides that the office of
Speaker or Deputy Speaker become vacant –

1. 
   Where
   he ceases to be a member of the Assembly otherwise
   than by reason of a dissolution of the Assembly or
   

   
   

2. 
   When the
   Assembly first sits after any general election.

   
   

Sub Section (6)
provides that –

“No
business shall be transacted in the Assembly (other
than
the
election of a Speaker)
at any time when the office of Speaker is vacant.”

Section 32(3) (a)
and (e) of that Constitution are consistent, as Sub Section (e)
provides that the Speaker vacates his office when
the Assembly first
sits after a general election. Sub Section (a) saves the office of
Speaker upon dissolution.

The corresponding
position in the Constitution of India is contained in Article 199.
It provides that a member holding office as
the Speaker or the Deputy
Speaker shall vacate office (1) if he ceases to be a member of the
Assembly, (2) if he resigns, or (3)
if removed by a resolution of the
Assembly. There is however a proviso which reads thus-

“Provided
further that whenever the Assembly is dissolved, the Speaker shall
not vacate his office until immediately before the first
meeting of
the Assembly after dissolution”.

In our
Constitution Article 83(1) (a) and (b) are inconsistent and therefore
cannot co-exist in the present form. This can only
be resolved by
enacting Sub Article (a) as a proviso, as in the Constitution of
India. However, this inconsistency does not affect
the
interpretation that is being given by me to Section 35 of the
National Assembly Act in this judgment.

Erskine
May on Parliamentary Practice considering the functions of office of
Speaker of the House of commons after the dissolution
and during
prorogation States under the heading “the
Speaker’s Administrative Duties” that “by Section 3(2) of the
Ministerial and other Salaries Act 1972, it is provided
that in the
case of a dissolution, the
then Speaker
shall be
deemed to be the Speaker
for
the purpose of the Act, until a Speaker shall be chosen by the new
Parliament”. Hence
whether a Speaker vacates his office when he ceases to be a member or
when the Assembly first meets after a general election,
the powers
conferred on a Speaker would continue uninterruptedly through any
succeeding Speaker despite dissolution. The emphasis
on the term
“the
then Speaker” is
significant. In the present case, when the Court of Appeal expressed
their view on Section 35 and 36 of the National Assembly
Act in the
judgment dated 3^rd
November 2000, the National Assembly had been elected and convened on
30^th
March 1998 (S.I11 of 1998), and a new Speaker duly elected (although
it was the same person). This
makes no difference for purposes of Section 35.

Section
31 presents no difficulty as the certificate would be based purely on
matters of record. However for a certificate to be
issued under
Section 15, the words “to
its satisfaction”
in Sub Section (1) presents an ambiguity. On one hand, it could mean
that the Speaker can certify only what the Assembly or the
Committee
had as a body decided as regards the answers given by the witness,
leaving
no room for an individual assessment.
On the other hand it could mean that the Speaker, or the Clerk in
his absence can
make an objective assessment
from the evidence on record and the conclusions and recommendations
therein, and determine whether the Assembly or the Committee
had been
manifestly satisfied that the witness had answered fully and
faithfully. As the certificate becomes necessary only if
a Civil or
Criminal case is instituted, and as such actions may be filed much
later, on a fair and liberal interpretation, the
latter meaning is
consonant with the provisions of Section 15.

Therefore
whether a witness had answered questions put to him fully and
faithfully could be assessed from the record of proceedings.
It
could ideally be done by the members of the Assembly or the members
of the Committee, as the case may be if an application
is made before
they become functus
officio.
However as under Section 35 of the Act, the Speaker
may
at all times
exercise his powers, despite
prorogation or dissolution of the Assembly,
it could be done by him at any time by reference to the record.

The
Speaker, in his letter dated 5^th
January 2001 stated that he does not believe that he can issue a
certificate under Section 15(2) of the National Assembly Act which

clearly states that such a certificate, in the circumstances of this
matter, be issued by the Chairman of the authorised Committee.
He
further stated that as he was not the Chairman of the Committee of
inquiry nor was a member of that Committee, he was not in
a position
to say whether the requirements of Section 15(1) were met. These
conclusions, were based on the view that the assessment
of the
evidence was a matter entirely within the scope of the members of the
Assembly or the members of the Committee.

It
was the petitioner, who by letter dated 13^th
November 2000 regarded the obiter
dicta
of the Court of Appeal as a “finding”
of
that Court which bound the Speaker. Learned Counsel for the
petitioner submitted that the arguments based on Section 35 and
36 in
relation to Section 15 were placed before the Court of Appeal and
that what appears in the judgment are the findings of that
Court.
With respect, the judgments does not support this assertion, and
moreover, what was before that Court for determination
was the
limited issue of the validity of the certificate issued by Mr Bibi,
the Ex-Chairman of the Committee of inquiry. Hence
the Speaker was
correct in coming to his own conclusions after considering the
judgments of the Supreme Court, the Court of Appeal,
and the report
of the Committee of inquiry.

The
Speaker also came to the conclusion that even
if he was entitled to issue a certificate,
the Court of Appeal judgment had stated that the petitioner should
have satisfied the requirements of Section 15(1) as to satisfying
the
Committee that he had answered questions put to him fully and
faithfully. He stated that on a reading of the report of the

Committee of inquiry, “it
could not be said that (the petitioner) had answered fully and
faithfully questioned put to (him) to their

satisfaction.” The
use of the word “their”
clarifies
that he was making a objective assessment, and not a subjective one.

It
is obvious from the words “to
its
satisfaction” in
Section 15(1), that the assessment of whether a witness had answered
“fully
and faithfully” must
be made by the members of the Committee collectively as a subjective
assessment. By the time the certificate was obtained
from Mr Bibi,
both the Committee and the Chairman had become functus
officio.
Hence Mr Bibi could not issue such a certificate on his own
individual assessment of the evidence. But the office of Speaker

does not become “functus
officio”
despite
prorogation or dissolution of the Assembly. Hence, as already
stated, the Speaker could, by reference to record, decide
whether
from the material on record it could be said that the Assembly or the
Committee had been satisfied that the witness had
answered the
questions put to him fully and faithfully, and so certify it under
his hand.

However, was the
Speaker justified when he concluded that on a reading of the record
it could not be said that the petitioner had
not answered the
questions to the satisfaction of the Committee? The certificate
envisaged in Section 15 postulates a full and
faithful answering of
question put to a witness. What would be the position where the
witness is a party to the incident under
inquiry?

In
the case of R
v. Leatham
(1861)
Cox’s c.c. Vol VIII-Page:498, the
Queen’s Bench Division considered Sections 9 and 10 of a Victoria
decree in respect of corrupt practices at an election.
Section 9
provided that where a witness gives evidence touching such corrupt
practice before the Commission of Inquiry and makes
a “true
discovery to the best of his knowledge touching all
things to which
he is so examined” will
be freed from any penal action or criminal prosecutions to which he
might become liable. Section 10 provided that “such
witness so examined shall not be indemnified under the Act unless he
receives from the Commissioners a certificate in writing
under their
hands stated that he has upon his examination made a true disclosure
touching all things on which he was so examined
…….. and if any
action, information or indictment shall be at any time pending in any
Court .…. Such Court shall on the production
of such certificate
stay the proceedings ……..”

Blackburn
J, examining these Sections stated –

“It
is perfectly plain that the Legislature, when instituting a
commission before which all parties were to come, meant that the

disclosure should be full and complete as to all matters connected
with the corrupt practices into which the commissioners were

inquiring, and for which purpose they provided that the witnesses
summoned before the commissioners should answer all questions,
and
produce all documents, bearing upon that questions. The
Legislature then had a knowledge and were aware, that a witness who
did thus answer might very well give evidence which would
criminate
him, and show that he was guilty of the corrupt practices as to which
the inquiry was taking place, and might also make
a statement that
would be evidence against him as to other matters,
and the Legislature having this before them, and seeing the
inconveniences that might arise from it, provided by section 9 and

10, that if the person who is summoned has been a party to any
corrupt practice and makes a full disclosure, and a true discovery
to
the best of his knowledge
touching
all things, he shall obtain a certificate, and be absolutely
indemnified against any corrupt practices in which he has
taken part.
If
he, being called and examined, equivocates, and does not make a true
discovery, then the legislature deprive him of that protection,
and
he still may be prosecuted for any corrupt practice in which he has
taken part, although it may be that before the Commissioners
he may
have made a statement, and true statements as
to
part.
Then the Legislature have still a further consideration. They think
if he does not make a true discovery that he may still be
prosecuted
for the corrupt practice, or even supposing he does make a true
discovery, that still there may be an action or suit
brought against
him of a civil or criminal nature, in which the statement he made
might be used as evidence against him; and, thinking
it hard that
such things should be given in evidence against him, they provide by
the 8^th
Section, that “no statement made by any person, in answer to any
question put by such Commissioners, shall, except, in cases
of
indictment for perjury committed in such answer, be admissible in
evidence in any proceeding, civil or criminal.”

Hence
where a witness is also a party, a certificate would be issued not in
respect of an admission of the offence under inquiry,
but in respect
of an Act or statement made by him “that
would be evidence against him as to other matters”.

In
the present case, the Committee, including
Mr Bibi as Chairman, signed the report which concluded inter
alia
that “the
Hon B.Faure was hit
from
behind and not from front.”
That conclusion was reached after stating in paragraph 14 of the
established facts in the report that “majority
of witnesses
confirmed
that
Hon.
W.Ramkalawan hit Hon Barry Faure from behind”.
Hence it could very well be that the members, or a majority of them,
would not have agreed to the granting of a certificate under
Section
15(1), on the ground that he had not fully and faithfully answered
the questions put to him. The Speaker was therefore
justified in
holding that on a reading of the Report it could not be said that the
petitioner had answered fully and faithfully
questions put to him “to
their satisfaction”.
Learned Counsel for the petitioner submitted that although the
certificate was inadmissible for purposes of Section 15, “it
still remains as the best possible evidence of its contents”.
She further submitted that “the
fact
remains that Mr Bibi who chaired the committee on inquiry, issued a
certificate in direct contradiction of the Speaker’s
findings to
the effect that the petitioner did fully and faithfully answer all
the questions that were put to him”.
But that was his personal assessment of the evidence and was
therefore unworthy of credit. Furthermore, it was issued when he
was
functus
officio.
Hence for the reasons stated by me, this submission is without
merit.

As
regards the second limb of the certificate, the rationale of Section
15 of the National Assembly Act is the necessity of the
Assembly to
obtain a full and faithful disclosure of all matters pertaining to
the inquiry whether the evidence is taken before
the Assembly or
before the authorised committee. For this purposes it would become
necessary for a witness to reveal material
that may incriminate him.
Immunity is therefore given to him for such statements, made. It
appears from the wording of Section
15(1) that an answer elicited
from a witness must emanate from a “question
put to him” by
the Committee. Hence there must be some form of questioning, and not
a qualified or unqualified admission which amounts to a
confession.
If it is a voluntary disclosure of guilt, then such witness would not
be entitled to a certificate of immunity. This
is similar to a
confession voluntarily made which, in the law of evidence, is
admissible against him. Hence immunity is not granted
as a reward
for speaking the truth where the witness is also a party whose
conduct is being investigated. Immunity is given to
a witness for
revealing facts to assist in the investigation, either by
incriminating himself or others – thus opening himself
of civil or
criminal prosecution. It was submitted by the Learned Attorney
General, that otherwise a witness who had committed
the most serious
crime, would be exempt from criminal liability merely because he had
admitted guilt before the Committee. The
Legislature would not have
intended such an absurdity. The most “serious
crimes” specified
under the National Assembly Act are, bribery and assault. Hence the
Speaker makes the decision under standing order 91
whether the
offence reported by a member amounts to an offence under the said Act
or not. A committee of inquiry is appointed
if he rules that such
offences is a specified offence under the Act. Hence, for instance
if the offence is murder, rape, drug
trafficking or such other
serious offence, it would be a matter for the Attorney General to
prosecute under the Penal Code or the
Misuse of Drugs Act, as they
are not specified offences under the Act. The words “questions
put to him” would
have meaning in the sense of some form of testimonial compulsion and
not a voluntary confession or admission made merely to
evade criminal
and civil liability. The mere summoning of a witness does not compel
him to give any particular answer. The petitioner
produced a
certified copy of the report of the Committee of Inquiry wherein in
his evidence he had, inter
alia
admitted the Act of assault on Hon. Faure.

Although
the admission for all intents and purposes could be considered as
“full
and faithful”
and was in respect of “any
Act or thing done by him before the time,” there
was nothing “revealed”
for the first time. Mere admission of a matter of that nature fell
short of the legal basis for issuing such certificate. The
inquiry
before the authorised Committee was limited too the issue of an
assault. The immunity envisaged in Section 15(3) must
necessarily be
give to a disclosure of something hitherto unknown. Hence the
assertion of the petitioner that the inquiry was
regarding the Act of
Assault, and that he made a full and faithful admission thus
entitling him to a certificate, is a misconception
as the inquiry
itself was in respect of that incident of assault.

Finally, the
Learned Attorney General also submitted that the Criminal proceedings
against the petitioner did not commence in respect
of, or on account
of, what he stated before the Committee, but on the basis of
independent evidence available as regards an alleged
assault, and
that hence, proceedings cannot be stayed. This is obviously so, as
the charge before the Magistrates’ Court is
under the Penal Code,
and not under Section 23(a) of the National Assembly Act, as
recommended by the Committee and approved by
the Assembly.

On the whole
therefore, the Speaker was justified in refusing to grant the
certificate. In these circumstances the petitioner cannot
complain,
(1) that his right to a fair trial has been contravened by the
refusal of the Speaker to issue the certificate on the
basis that had
it been issued, he would not have a trial at all, and (2) that the
continuation of the trial before the Magistrates’
Court is a
contravention of Article 19 of the Constitution.

The petition is
accordingly dismissed. In view of the importance of the issues
involved in this matter, there will be no order
for costs.

………………..

A.R.PERERA

ACTING CHIEF
JUSTICE

Dated
this 25^th
day of September 2001

IN
THE CONSTITUTIONAL COURT OF SEYCHELLES

WAVEL
RAMKALAWAN PETITIONER

Versus

1. THE
REPUBLIC

(herein
rep. by the Attorney General)

2. THE
ATTORNEY GENERAL

of
National House RESPONDENTS

Constitutional
Case No 1
of
2001 [Before:
A.R. Perera (Presiding AC]), N.
Juddoo, J and D.
Karunakaran J].

Mrs.
A. Georges for the Petitioner

Mr.
A. Fernando and Ms. F. Laporte for the Respondents

JUDGMENT

Juddoo
J

The
petitioner, as defendant, has been charged before the Magistrates
Court with assault
occasioning actual bodily harm, in
contravention of and punishable, under Section 236 of the Penal Code
(Cap 158). He is alleged on 11th November 1997, within the
precincts
of the National Assembly, to have assaulted one Barry Faure. Both the
petitioner and the said Barry Faure were members
of the National
Assembly at the material time.

In
essence, the petitioner claims before this Court that his right to a
fair trial under Article 19 of the Constitution has been
infringed by
reason of the refusal of the current Speaker of the National Assembly
to issue him with a certificate under Section
15 of the National
Assembly (Privileges, Immunities and Powers) Act (hereinafter
referred as 'The Act') whereby "the
petitioner has been deprived of
his right to have the criminal proceedings in respect of
the charge against him stayed".

There
is no denial that an incident occurred on 11^th
November 1997 involving certain members of the National Assembly.
Following the said incident, the National Assembly resolved that
a
"committee
on special inquiry" be
appointed ^uto
investigate into an incident which occurred in the precincts of
the
National Assembly during the morning tea break of
Tuesday 11^th
November 1997 between Hon. Wavel Ramkalawan and Hon. Barry Faure"
and
to report its findings and make recommendations to the House at the
next sitting.

The
petitioner was called as a witness before the authorised committee
and was questioned as to his participation in the incident.
The said
committee heard witnesses, completed its inquiry and submitted its
report and recommendations before the National Assembly
on 18^th
November 1997. The session of the National Assembly wherein the
authorised committee was instituted, had carried forth its mandate

and submitted its report and recommendations was dissolved on 19 ^th
February 1998.

On
12^th
November 1998, the petitioner was charged under Section 236 of the
Penal Code with the offence of assault occasioning actual bodily
harm
in relation to the incident. Before the petitioner entered a plea it
was moved that the criminal charge laid against him be
stayed on the
ground that the petitioner, as defendant, had appeared as a witness
before an authorised committee of the National
Assembly in the
determination of matters the subject of the proceedings, and a
certificate under the hand of the former Chairman
of the Committee,
Mr. Georges Bibi, dated 18^th
November 1998, to the effect that the defendant was required to
answer questions put to him by the Committee and answered the
questions fully and faithfully to the satisfaction of the Committee
was produced. The Magistrate Court denied the motion for stay
of the
proceedings against the petitioner on the ground that the said Mr.
Bibi was functus officio at the time he signed the certificate.
This
finding was upheld on review by the Supreme Court. The said decision
maintained on appeal by the Court of Appeal on 3^rd
November 2000. Accordingly, the said certificate or its content is
null and void for all intents and purposes.

Subsequently,
by letter dated 17^th
November 2000, the petitioner made an application to the current
Speaker of the National Assembly to be issued with a certificate

under Section 15 of the Act. The material part of the letter reads as
follows:

".....On
appeal to the Court of
Appeal that Court, while agreeing with the other Courts that Mr.
Georges Bibi was "functus officio", nonetheless stated
that
1 was entitled to a certificate and that the same could be issued
under your hand.

I
enclose a copy of
the judgment for your information and in support of
my request to you that a certificate under Section 15 of
the National Assembly (Privileges, Immunities and Powers) Act that I
was called, as a witness and did fully and faithfully answer
the
questions that were put to me be issued to me under your hand..."

By
a reply letter, dated 5^th
January 2001, the Speaker of the National Assembly informed the
petitioner of his refusal to issue a certificate to him under Section

15 of the Act. Whilst averring in the petition that the "exercise
by the Speaker of
his powers to issue the said certificate is not subject to the
jurisdiction of
any Court..." the
petitioner claims that "the
Speaker was obliged in law to issue a certificate stating that the
petitioner was called as a witness by the Committee
and had fully and
faithfully answered, the questions that were put to him..."and
additionally
that the petitioner had ^umade
an admission to the Committee that he had assaulted the said Barry
Faure and had fully and. faithfully answered questions put
to him by
the Committee" Accordingly,
the petitioner further claims that by reason of the refusal of the
Speaker to issue him with a certificate, he has
been deprived of his
right to have the criminal proceedings against him stayed infringing
upon his right to a fair trial guaranteed
under Article 19 of the
Constitution.

The
core determination before this Court is whether the right of the
petitioner to a fair trial, as a party charged before the
Magistrates' Court, has been infringed. This in turn, raises the
issue whether the petitioner is entitled to the statutory right
for
the proceedings instituted against him before the Magistrates' Court
to be stayed by virtue of the operation of Section 15
of the Act
which reads as follows:

"(1)
Every witness before the National Assembly or an authorised Committee
who shall answer fully and faithfully any questions
put to him by the
National Assembly or such Committee to its satisfaction shall be
entitled to
receive
a certificate stating that such witness was upon his examination so
required to answer and did answer any such question.

2. 
   Every
   certificate under subsection (1)
   shall, in the case of
   a witness before the National Assembly, be under the hand, of
   the Speaker and. in the case of
   a witness before a Committee, be under the hand of
   the Chairman thereof.

   
   

3. 
   On
   production of
   such certificate to any Court of
   Law, such Court shall stay any proceedings, civil or criminal,
   except for a charge under Section 102 or 122 of
   the Penal Code, against such witness for any act or thing done by
   him before the time and revealed by the evidence of
   such
   witness..."

   
   

In
Ramkalawan v R, Criminal Appeal No. 15 of 1999 (Judgment delivered on
3^rd
November 2000) the Court of Appeal observed that:-

"On
a proper reading of
subsections (1)
and (2) of
the section, it is clear that a witness who gives evidence, either
before the Assembly or its authorised committee, and satisfies
the
requirements of
subsection (1),
is
entitled to a certificate as a matter of
course, that is to say, the Speaker of
the Assembly or the Chairman of
an
authorised committee, as the case may be, should issue such
certificate either on request by the witness or ex
mero motu
after evidence has been given but before presentation of
the report, in the case of
the committee chairman ...

In
our view, as the Speaker presides over the proceedings of
the Assembly, once the Chairman of
the authorised committee tables the committee's report before the
Assembly (an thereby ceases to be its chairman) the Speaker "shall"

exercise his powers under section 15(2), including those conferred
upon the former committee chairman and, in his absence, the
Clerk
shall exercise such powers from the records of
the Assembly, This interpretation is consonant with the purpose of
section 15 which entitles the witness to a certificate to be issued
at once or subsequently."

In
order for the petitioner to succeed in the present case, it needs to
be shown that the petitioner satisfies the requirements
section 15(1)
of the Act and was entitled to the issue of a certificate, either at
once or subsequently, and that such a certificate
if produced before
the lower court would result in a stay of the proceedings under
section 15(3) of the Act. It needs to recall
at this stage that the
statutory stay of proceedings under section 15(3) of the Act is
mandatory rather than discretionary. This
means where the conditions
are fulfilled, section 15(3) of the Act operates to grant a stay to
the criminal charge brought against
a former witness.

Under
the Act itself, there are obvious circumstances where the entitlement
and production of a certificate will not result in a
stay of the
proceedings. A simple illustration is where the charge is for an
offence under section 102 or section 122 of the penal
code. A further
illustration is where the charge against the defendant is not for
"any
act or thing done by him before the time and revealed by the evidence
of
such witness..." In
the latter case, it becomes secondary whether the petitioner, as
witness, had answered fully and faithfully any questions put
to him
to the satisfaction of the authorised committee in compliance with
section 15(1) or whether the petitioner, as witness,
should have been
entitled to the issue of a certificate under section 15(2) of the
Act.

It
is averred in the petition that "By
operation of
section 15 of
the Act, the Petitioner, if
able to produce a certificate to the effect
that he was required to answer and did answer questions put to him by
a committee of
the
Assembly, and that he answered them fully and faithfully, would be
afforded a stay of
the criminal proceedings against him" In
support thereof, it is submitted "...section
15, as presently worded, is wide enough to cover this case. The
assault with which the accused stands charged was
alleged to have
been committed on 11^th
November 1997. The Committee was set up
to investigate the alleged assault. The appellant testified before
the Committee on the 23^th
November 1997. On the 13^th
he was testifying to something that had happened 'before the time'.
When, on 12^lh
he was called to testify as a witness he was forced to divulge
matters, in other words 'reveal' matters which had happened on the

11^th.
The fact that the matters revealed by him were already known, or
had been revealed by other sources, is immaterial. To hold otherwise
would be to seek to add the words 'for
the first time'after
'reveal'in
section 15(3)..." It
is further submitted "Because
a witness before a Parliamentary Committee cannot refuse to answer a
question, even if
it incriminates him, a protection has to be afforded to the
witness...this is why section 15(3) specifically provides a witness

who has incriminated himself with immunity."

Section
15(3) of the Act has to be read in its proper perspective. It does
not provide immunity to a witness merely because the
latter has
incriminated himself when called as a witness before an authorized
committee. Section 15(3) has to be read with the
provisions under
sections 14(1) and 15(1) of the Act. Under section 14(1), thereof,
every witness who appears before the authorized
committee "shall
be entitled...to the same right and privileges as before a court- of
law" and,
under section 15(1), thereof, a witness who has been required to
answer and did fully and faithfully answer any question put
to him to
the satisfaction of the authorized committee is entitled to a
certificate. Accordingly, where the witness is so required
to answer
-and has answered fully and faithfully to the satisfaction of the
authorised committee, the witness is entitled to the
issue of a
certificate as a matter of course either at once or subsequently.
Such a certificate will operate to stay any subsequent
proceedings
against the witness for any act or thing done by the witness and
revealed by his evidence before the authorized committee.

The
ascertainment as to whether the petitioner as witness was required to
answer a question put to him is a question of fact to
be ascertained
from the records produced and the surrounding circumstances. In the
present case, the act complained of is an assault
by one person upon
another. The alleged assault occurred within the precincts of the
National Assembly and was witnessed by others
including the
complainant. Given that the alleged incident occurred within the
precincts of the National Assembly and involved
two of its members,
an authorised committee was set up to investigate into the incident.
The said committee summoned and heard
eleven witnesses; two security
officers, two employees of the National House and seven members of
the National Assembly including
the petitioner and the said Barry
Faure.

From
the records of the proceedings of the authorised committee, it is
disclosed that the petitioner attended as a witness before
the said
Committee on 12^th
November 1997. He was requested by the Chairman of the Committee to
inform the members about his version of the incident. He raised
two
objections to the composition of the authorised committee and
thereafter volunteered his version of the incident including
an
admission, amongst others, that he had dealt a slap to Mr. Barry
Faure. At no time had the petitioner, then as witness, claimed
to
exercise his privilege against self-incrimination in respect of any
part of his evidence nor has the authorised committee been
put to an
election whether they would request the witness to answer any
specific question inspite of the privilege that the latter
may enjoy
supplementing such a request with the ability and power of the
authorised committee to grant some form of immunity to
the witness by
way of a certificate issued to him under the Act.

It
is of interest that the petitioner, himself, whilst he was giving
evidence before the authorised committee disclosed his awareness
that
the acts and events pertaining to the incident which was being
inquired could well be the basis of Court actions against or
by him
(vide pages 53 and 57 of the authorised committee proceedings).
Learned Counsel on behalf of the petitioner submitted that
the right
to a certificate by a former witness under the Act only becomes
relevant at the time when Court proceedings are instituted.
Such a
restrictive interpretation cannot be imposed on section 15(1) of the
Act for it would take away the prerogative and privileges
entrusted
to the authorised committee members to assess whether the witness had
fully and faithfully answered the question put
to him at the material
time. This is irrespective as to whether the actual certificate is
issued during the life time of the authorised
committee or at a later
date.

Upon
an examination of the records of the proceedings of the authorised
committee there is no evidence that any stage of its deliberation
it
was resolved that the petitioner, who was summoned to give evidence
as witness, and did give evidence, which "satisfied"
the requirements under section 15(1) of the Act and was entitled to
the issue of a certificate. The requirement under Section 15(1)
of
the Act is for a witness to have fully and faithfully answered any
question put to him to the satisfaction of the authorised
committee.
Such determination falls upon the said committee members and is to
form part of the records. Any decision or determination
of the
committee members has to be carried forth in satisfaction of the
voting procedure under which the authorised committee is
governed.
Had there been such a determination in the proceedings or report then
the issues would rightly arise as to whether a
certificate ought to
have been issued to the petitioner under section 15(2) of the Act,
and additionally whether the current speaker
of the National Assembly
was "obliged" (as pleaded) to exercise his powers, if any,
under Section 35 of the Act to issue
the said certificate (taking
into account that it was averred by the respondent that the current
Speaker had no such power under
the present Constitution) and lastly
whether refusal to issue a certificate infringes on the
constitutional right of the petitioner
under Article 19 of the
Constitution. In the latter respect, I would venture to suggest that
where the act or discretion of the
Honourable Speaker is put into
cause, there is need to include him as a party and grant him a right
of reply.

The
petitioner's submission is that, otherwise than by a determination of
the authorised committee, this Court is able to scrutinise
the
testimony of the petitioner before the authorised committee and
taking into account his admission that he assaulted the said
Barry
Faure this Court can determine whether he had fully and faithfully
answered the questions put to him to the satisfaction
of the
authorised committee in fulfillment of section 15(1) of the Act. This
would amount to a usurpation of the powers and privileges
of the
authorised committee especially taking into account that the
petitioner, as witness, had the right and opportunity to call
upon
the committee to examine whether he satisfied the requirements under
Section 15(1) of the Act when he thought he was required
to answer
any question that might reasonably incriminate him and taking account
of his expressed awareness that court proceedings
(civil or criminal)
may result on the basis of matters which were being investigated.
Such intervention under the guise of legitimate
relief is not
warranted in the circumstances.

In
relation to the charge facing the petitioner before the Magistrates'
Court, it is not disputed that the there is evidence of
the 'alleged
assault' otherwise than by virtue of the admission made by the
petitioner when he appeared as witness before the authorised

committee. The incident occurred in the presence of several
witnesses, including Mr. Barry Faure who appears to be the
complainant
as per the information laid before the lower Court. By
way of his admission, the petitioner, as witness did not "reveal"

any act or thing done by him. The word "reveal" as used in
the language of the section is to make known a fact which
was
otherwise unknown before the revelation made by the witness. Neither
has it been shown that the criminal charge laid against
the
petitioner, as defendant, is dependant upon the admission or evidence
that was revealed before the authorised committee. Where
such an "act
or thing" done is considered to be revealed before an authorised
committee there is unlikely to be then
in existence other means of
being aware of the fact or thing so revealed.

In
the end result and for reasons given hereabove, it cannot be said
that the petitioner has satisfied the requirements of Section
15(1)
of the Act, so as to be lawfully entitled to the issue of a
certificate nor that such a certificate would result in a stay
of the
criminal charge instituted against the petitioner, as defendant.
Accordingly, in that respect, the petitioner's right to
a fair trial
before the Magistrates' Court under Article 19 of the Constitution
cannot be said to have been infringed.

Accordingly
the petition is dismissed No order as to costs. Delivered at
Victoria, Mahe, this 25th day of September
2001.

IN
THE CONSTITUTIONAL COURT OF SEYCHELLES

Wavel
Ramkalawan of

St
Louis, Mahe PETITIONER

Vs

1.
The Republic

(herein
represented by the Attorney General)

2.
The Attorney General, of National House RESPONDENTS

Constitutional
Case No: 1 of 2001

Before
- A.R. Perera (Presiding), N. Juddoo, J.&D.
Karunakaran, J.

Mrs.
A. Georges for the Petitioner

Mr.
A. Fernando and Ms. F. Laporte for the Respondents

D.
Karunakaran, J.

JUDGMENT

At
all material times the petitioner was and is a member of the National
Assembly. On Tuesday, 11^th
of November 1997 an untoward incident occurred in the premises of the
National Assembly between the petitioner and a fellow member
one
Barry Faure. A Committee of Inquiry was set up to inquire into the
said incident and report to the Assembly. Accordingly, the
committee
inquired into the alleged incident. The petitioner was examined as a
witness before that committee. The committee concluded
the inquiry
and tabled its report on the 18^th
of November 1997, before the Assembly. Thereafter, the committee's
life automatically came to an end. Following the report, the
Assembly
took certain disciplinary measures against the petitioner in terms of
section 28 of the National Assembly (Privileges,
Powers and
Immunities) Act, hereinafter called the Act.

In
addition to such measures, criminal law was set in motion against the
petitioner. He was charged with an offence in respect of
the same
incident. Consequently, the petitioner now stands charged before the
Magistrate's Court with the offence of assault occasioning
actual
bodily harm contrary to section 236 of the Penal Code. The
particulars of the charge allege that the petitioner on the 11^th
of November 1998 within the premises of the National Assembly
unlawfully assaulted a fellow member Barry Faure and thereby
occasioned
him actual bodily harm.

Before
making his plea to the charge, the petitioner moved the trial court
for an order to stay the said criminal proceedings in
terms of
section 15(3) of the Act. In support of the motion, the petitioner
produced before the trial court a certificate issued
by Mr. Georges
Bibi, the former chairman of the said committee of inquiry. The
petitioner claimed that the certificate he produced
in the
proceedings was a valid one issued by a competent person in terms of
Section 15 (2) of the Act. However, the trial court
held otherwise
stating that the said certificate was not valid, as the maker of it
was functus officio at the time he issued the
purported certificate.
Therefore, the Magistrate's court refused the motion for a stay.
Being aggrieved by the refusal order the
petitioner applied to the
Supreme Court for a revision. The Supreme Court on revision upheld
the finding of the trial court on
the issue. The petitioner again
made a second appeal to the Court of Appeal. The apex court in its
judgment in Criminal Appeal
No: 15 of 1999, dated 3^rd
November 2000, rejected the petitioner's claim. Thus, it upheld the
original finding of the trial court in that the certificate,
which
the petitioner had produced before the trial Magistrate, was not
valid. In the same judgment, the Court of Appeal went on
to make
certain observations and to express its view in respect of the power
conferred on the Speaker under section 35 of the Act.
Indeed, their
Lordships expressed their views therein based on their interpretation
of law under section 35 of the Act. According
to them, that
interpretation was in consonant with the purpose of section 15, which
entitles the witness to a certificate, either
to be issued at once or
subsequently. Their view expressed therein reads as follows: -

"In
our view, as the speaker presides over the proceedings of the
Assembly, once the chairman of an authorised committee tables
the
committee's report before the Assembly (and thereby ceases to be its
chairman) the Speaker shaft exercise his powers under
section 15(2),
including those conferred upon the former committee chairman and, in
his absence, the Clerk shall exercise such
powers from the records of
the Assembly."

Having
thus expressed their unanimous view on the implied power of the
Speaker to issue certificates of this nature, their Lordships

dismissed the petitioner's Appeal. Be that as it may.

Following
the dismissal of the Appeal, the petitioner requested the Speaker of
the National Assembly to issue him with a certificate
under Section
15 of the Act. The petitioner made this request to the Speaker
quoting the above view of the apex court so that the
Speaker could
issue the certificate in the place of the former chairman of the
committee Mr. Bibi. Obviously, the petitioner required
this
certificate in order to produce the same before the trial court so as
to obtain a stay, which he failed to, in his first attempt,
because
of invalidity of the certificate he first produced.

After
considering the petitioner's request, the Speaker by his letter dated
the 5^th
January 2001 refused to issue the certificate to the petitioner for
the following reasons, which 1 quote in verbatim: -

1.
Since I did not chair the Committee of Inquiry nor was a member of
that Committee, I am not in a position to say whether the requirement

of
SS
(1) of
S.
15 were met, nor do I believe I can issue the certificate under SS
(2) which clearly states that in the case of a witness before
a
Committee, the certificate shall be under the hand of the chairman
thereof.

2. 
   However,
   even if I was entitled to issue a certificate in compliance with S.
   15(1) and the Court of Appeal judgment on page 3
   refers to
   satisfying the requirements of SS (1)
   of S. 15. On reading the Report of the Committee of Inquiry, it
   cannot be
   said that you answered fully and faithfully the questions put to you
   to their satisfaction.

   
   

3. 
   I
   am not convinced that S.35 of the Act is relevant to this case.

   
   

Being
aggrieved by the refusal of the Speaker, the petitioner has now come
before this court for a constitutional redress. Herein,
the main
contention of the petitioner is that he requested the Speaker to
issue the certificate based on the observations the Court
of Appeal
had made in its judgment (supra) but the Speaker refused. According
to the petitioner, the Speaker is obliged in law
to issue a
certificate, as the petitioner was a witness before the committee and
had fully and faithfully answered the questions
put to him by the
committee. Further, it is the submission of the petitioner that he
has statutory entitlement to a certificate
and such a certificate
would consequently afford him immunity from prosecution. It was also
argued that under section 35 of the
Act" the Chairman may, at
all times exercise the powers conferred upon him by this Act even
though the Assembly may have been
prorogued or dissolved Therefore,
the Speaker ought to have issued the certificate although the
committee's life had already ended.
Further, the petitioner argued
that this Court has jurisdiction to review the Speaker's decision
despite a seeming ouster clause
under section 34 of the Act.
Moreover, the petitioner contended that because of the said refusal
of the Speaker, he could not produce
the necessary certificate before
the trial court in order to have his trial stayed. The continued
trial according to him, would
not amount to a fair trial, as he has
been deprived of his right of defence in that, he could not canvass a
stay of the proceedings
at the trial. Therefore, the petitioner
claims that his fundamental right to a fair hearing guaranteed under
Article 19(1) has
been contravened by the refusal of the Speaker. In
the circumstances, the petitioner urges this court to scrutinise the
Speaker's
refusal to issue the certificate and the resultant
continuation of the said criminal trial, which the petitioner claims,
are unconstitutional
as they contravene article 19 of the Charter.

Consequently,
the petitioner has applied to this Court for a declaration: -

(i)
that his trial in the said case contravenes the Seychellois Charter
of Fundamental rights and Freedom per Artide 19 of the Constitution;

and

(ii)
that the said refusal of the Speaker to issue the petitioner the
certificate hereinbefore mentioned contravenes Article 19
of the
Constitution and denies him a fair hearing.

On
the other side, the respondent in essence, submitted that the
observations the Court of Appeal has made in the judgment (supra)
are
only obiter
dictum According
to the respondent, the Speaker's refusal is correct and the reasons
given for such refusal are valid in law and on the
facts. Further,
the respondent contended that the provision in Section 35 of the Act
is inconsistent with the provisions pertaining
to the Speaker in the
1993 Constitution. Therefore, according to the respondent section 35
of the Act is void in terms of article
5 of the Constitution.
Moreover, the National Assembly, which appointed the committee of
inquiry, was dissolved on 1^s1
of February 1998 by virtue of S. 1 16 of 1998. Hence, the present
Speaker is not empowered to exercise a power, which he might
have
exercised before 1^st
February 1998 in his capacity as the Speaker of the previous
Assembly. According to the respondent, the petitioner cannot claim

his entitlement to the certificate as his constitutional right.
Further, it is submitted that the petitioner's entitlement to the

certificate is subject to the condition that he should have fully and
faithfully answered all questions put to him, to the satisfaction
of
the committee. The Speaker or the chairman of the committee thereof
has the right to refuse, if the petitioner had not fully
and
faithfully answered the questions put to him to the satisfaction of
the committee. In the instant case, the Speaker on reading
of the
Report of the committee could not find that the petitioner answered
fully and faithfully questions put to him to the satisfaction
of the
committee. In the circumstances, the respondent contended that the
Speaker rightly and lawfully refused to issue the certificate.
There
is no contravention of any provision of the constitution by such
refusal. Therefore, the respondent submitted that the Speaker's

refusal to issue the certificate in question is constitutional.
Moreover, the respondent contended that the continued criminal
trial
before the Magistrate's Court is not in contravention of article 19
of the Constitution. For these reasons, the respondent
urged this
court
to
dismiss the petition in this matter.

First,
I meticulously sifted the factual basis of the petitioner's claim in
this matter. Indeed, the postulates of the argument
advanced by the
petitioner may be summarised and the chain of causation be marshalled
in the following logical sequence: -

(i)
The petitioner has a statuary right to obtain a certificate

from
the Speaker under the provisions of the Act.

(ii)
The Speaker owes a statutory duty under the Act to

issue
such a certificate to the petitioner but he

unfawfufiy
refused to do so.

(iii)
Consequently, the petitioner could not produce the

necessary
certificate to canvass a stay of the criminal

proceeding
instituted and pending against him.

(iv) A
stay of proceedings in criminal trial amounts to a
defence and the
petitioner could not exercise his right of
defence in the trial
before the Magistrate's Court.

(v) Therefore,
the petitioner is deprived of his right to a fair
hearing because
the fairest hearing one can have is to
be able to argue that one
ought not to have a hearing
against one at all.

(vi) Consequently,
the continued trial without a stay does not
amounts to a fair
hearing; and

(vii) Hence,
the Speakers refusal is the "cause" which has
culminated
in contravention of the petitioners
constitutional right to a
fair hearing enshrined in Article 19 of the Constitution, which is
the "effect."

I
diligently considered the entire arguments advanced by Mrs. A.
Georges, the Learned Counsel for the petitioner and that of the

Honourable Attorney General in this matter. With due respect to both
counsel I believe, their outspread arguments over peripherals
have
given rise to a number of issues that all in my view, neither
necessary nor relevant to the fact in issue. In quintessence,
as I
see it, the fundamental question that arises for our determination is
whether the decision of the Speaker in refusing to issue
the
certificate in question has in fact, contravened the petitioner's
fundamental right to a fair hearing guaranteed under article
19
of
the Constitution. On the other hand, if we entertain and attempt to
determine other peripheral issues raised by the parties,
obviously we
would end up missing the woods for the trees.

Prerogative
Jurisdiction

Before
we set off to find an answer to the fundamental question, one should
ascertain at first place whether this court has jurisdiction
to
review or scrutinise the decision of the Speaker in the instant case
on hand. In other words whether the decision of the Speaker
is
justiciable before this court in view of section 34 of the Act, which
reads as follows: -

"Neither
the Assembly, the Speaker nor any officer shall be subject to the
jurisdiction of any court in respect of the exercise
of any power
conferred on or vested in the Assembly the Speaker or such officer by
or under this Act.".

In
this respect, one should bear in mind that we are sitting here not as
the Supreme Court exercising its supervisory jurisdiction
over the
decision of any statutory or adjudicating authority by virtue of
article 125(1) of the Constitution. We are sitting here
not to
determine on the illegality, irrationality or impropriety of the
Speaker's decision by way of appeal, revision, or judicial
review
applying the principles of natural justice or that of Wednesbury.
But, we are sitting here only as the Constitutional Court
exercising
jurisdiction by virtue of article 129(1) of the Constitution to deal
with matters only in respect of the application,
contravention,
enforcement, or interpretation of the Constitution. Hence, what this
court may determine in this matter is whether
the Speaker by any of
his act or omission has contravened Article 19 of the constitution
rendering his decision unconstitutional.
The ouster clause under
section 34 in the statute obviously, cannot take away the
jurisdiction conferred on this court by the Constitution.
I say so
because in one sense no Speaker ever has jurisdiction to decide a
case unconstitutionally and say that the courts have
no jurisdiction
to scrutinise his decision and its constitutionality in view of the
ouster clause in the Act. When a statute grants
jurisdiction to any
authority to decide any matter, it does so in the belief that the
authority concerned will decide that matter
in accordance with the
provisions of the constitution not in contravention thereof. So much
so that it may be said that it is an
implied condition of the grant
of jurisdiction that it should decide according to the Constitution.
Therefore, notwithstanding
the ouster clause under section 34 of the
Act, I hold that this court shall have jurisdiction in this matter
being its constitutional
prerogative, provided the petitioner
establishes prima facie that the Speaker by any of his act or
omission has contravened or
is likely to contravene, any provision of
the Constitution. Therefore, to ascertain and assume jurisdiction
herein at the outset
the following question must be asked:

"Has
the petitioner established prima fade any such ad or omission that
contravened or likely to contravene any provision of
the Constitution
in order for this court to exercise jurisdiction in this matter?"

If
the answer is in the affirmative, then the court may proceed further.
If it is in the negative the matter should end there and
then.
Nothing short of that would suffice and allow this court to assume or
exercise jurisdiction over the Speaker's decision in
this matter. In
fact, the crux of the petitioner's case is that the Speaker failed to
exercise the power conferred on him under
section 35 of the Act and
refused to issue the certificate to the petitioner. Obviously, the
Speaker is under no constitutional
obligation to issue any
certificate to the petitioner. At the same time, the petitioner also
has no constitutional right to obtain
any certificate from the
Speaker. After all the subject matter of the grievance is that the
petitioner was refused a certificate,
which he claims that he is
entitled to, under a statute. On the contrary, the Speaker claims
inter alia, that the petitioner is
not entitled to the certificate,
as he has not satisfied the requirement under the same statute.
Therefore, the alleged act or
omission revolves only around the
statutory right and obligation of the parties. While that being the
case, I do not understand
which act, or omission of the Speaker has
contravened or constitutes the contravention of the constitutional
right and obligation
of the parties. As I see it, the nexus between
the "cause" namely, the act of refusal of the Speaker to
issue the certificate
and the ultimate "effect" namely, the
alleged contravention of article 19 of the constitution is highly
farfetched and
fallacious. For instance, the first postulate (supra)
of the petitioner's argument is that his entitlement to the
certificate is
his statutory right is fallacious because it becomes
his statutory right if and only if the committee is satisfied that he
has
answered fully and faithfully the questions put to him. Likewise,
it cannot be said that the chairman of the committee or the Speaker

for that matter owes a statutory duty to issue the certificate to the
petitioner under the Act. On the contrary the chairman of
the
committee or the Speaker also has a statutory right to refuse the
certificate, if he is not satisfied that the petitioner has
answered
fully and faithfully the questions put to him. In any event, it seems
to me that the cause and the alleged effect are
too remote to give
rise to a reasonable cause of action in this matter. The petitioner's
hypothesis as to " cause and effect"
or" chain of
causation " only reminds me of an old story that "for want
of a nail, a shoe was lost; for want of
a shoe a horse was lost; for
want of a horse a rider was lost; for want of a rider a message was
lost; for want of a message forces
were lost; for want of forces a
whole empire was lost". I would now, simply ask you "Did
the missing nail really cause
the fall of the empire?" and in
the same breath," Did the act of refusal of the Speaker to issue
the certificate really
cause the contravention of the petitioner's
constitutional right?" In my considered view, the answer is
certainly " No."
There is no proximate relationship between
the cause and the assumed effect to give rise to a reasonable cause
of action in this
petition. Therefore, I find that the petitioner has
not established or shown prima facie that the Speaker has by any of
his act
or omission really contravened or is likely to contravene
article 19 or any other provision of the Constitution for that
matter,
rendering his decision unconstitutional. As I have held
supra, the petitioner ought to show such act or omission in order for
this
court to assume and exercise jurisdiction in this matter.
Consequently, I hold this court has no jurisdiction to entertain this

petition as no contravention or its likelihood has been established.

Inviolable
Jurisdiction of the Speaker

Under
the Act, the Speaker is not subject to control by the Courts as long
as he keeps himself within the jurisdiction and decides
in accordance
with law and the Constitution. On a plain reading of section 34, the
meaning is very clear that the Speaker shall
not be subject to the
jurisdiction of the Courts in the exercise of any power conferred on
him under the Act. Indeed, the words
contained in section 34 are
precise and unambiguous and are, therefore, to be understood in their
natural meaning. In the words
of Tindal, C. J., in Sussex Peerage
cases (1843- 1845) 65 RR 11
at 51
as cited by the Court of Appeal in the judgment, (supra): -

"if
words of a statute are in themselves precise and unambiguous, then no
more can be necessary than to expound those words
in their natural
and ordinary sense."

The
power conferred on the Speaker under the Act undoubtedly includes the
power to issue or refuse a certificate whether under section
15
or 35 of the Act and so I find. Whatever be the interpretation one
gives to section 35 the fact remains that the power conferred
on the
Speaker under the Act is inviolable as it relates to the privileges
and Immunities of the Members of the National Assembly,
which
constitute the pith and substance of the Act. Speaker is the
presiding officer of the National Assembly. He is the guardian
of the
privileges of the Assembly, protects and adjudicates on the rights,
privileges and immunities of its Members. The Speaker
has the
exclusive jurisdiction over all matters concerning privileges and
immunities of its Members including the issuance of certificates

under the Act. His determination within his power and jurisdiction is
not a matter for any court to intervene. The court cannot
usurp or
alter the power and function of the Speaker under the thin disguise
of interpretation. As such attempt would undermine
the basic
structure of the Constitution and Parliamentary Democratic System
where each organ namely, the executive, the legislature
and the
judiciary should be independent maintaining separation of powers,
with checks and balances within the system.

Various
organs of the state are to operate independently under the provisions
of the Constitution. Whereas one organ of the state
may be given
powers to check the illegal acts of another of the state. However,
the interference in the normal functioning, power
and jurisdiction of
each is avoided by the other. Each one is allotted its own sphere of
jurisdiction.

It
should be noted that in issuing or refusing a certificate the Speaker
is not exercising any constitutional or absolute statutory
duty. In
the circumstances, I find that the decision of the Speaker in
refusing the issuance of the certificate cannot be challenged
before
this Court as such decision falls within his exclusive jurisdiction
and power conferred upon him by the Act. No court for
that matter has
jurisdiction to review the decision of the speaker by going into its
merits or into the discretion of the Speaker
in the exercise of the
power conferred on him under the Act except on judicial review. It is
evident that as far as the allegation,
which constitutes the
petitioner's grievance is concerned it involves only the merits of
the Speaker's decision and his discretion
in the exercise of the
power in refusing the certificate under the Act. Therefore, in the
absence of any contravention of the Constitutional
provision as I
have held supra, this court has no jurisdiction to go into the merits
of the Speaker's decision or into his discretion
in the exercise of
the power conferred on him under the Act. This court should not be
drawn into this area. The independence of
the legislature and
separation of power must be maintained or else democracy loses its
meaning. Hence, i find that this petition
is not maintainable before
this court and so liable to be dismissed.

A
fair hearing

On
the question of fair hearing it is pertinent to note that right to a
fair hearing is a fundamental right guaranteed under article
19 of
the constitution, to every person who is charged with an offence
irrespective of his religion, race, colour, sex, creed,
political
beliefs and above all the privilege or immunity one might enjoy under
a statute or otherwise. It is truism that such
guarantees specified
in Article 19 are not exhaustive. Fairness in respect of a person
charged with an offence couldn't be limited
to aspects that arise in
the course of trial alone. To ensure a fair hearing the trial court
should give every such person adequate
time and facilities to prepare
a defence to the charge, in terms of Article 19(2)
(c) of the Constitution. This is the right, which the petitioner
specifically alleges has been contravened by the refusal of the

Speaker. The fairest hearing, as submitted by the Learned Counsel for
the petitioner" is to be able to argue that one ought
not to
have a hearing against one at all." Of course, the trial court
in the instant case never denied that right at any point
of time to
the petitioner during the proceedings. In tact, it has given the
petitioner ample time more than 2
1/2 years
and has provided all facilities within its power to enable the
petitioner to prepare a defence to the charge. The trial court
has
obviously given the petitioner a fair hearing and the petitioner
indeed did put up his defence by producing a certificate.
The trial
court did not condemn the petitioner unheard. It never denied the
petitioner a hearing in order to argue that he ought
not to have a
hearing at all before the trial court. The trial court never denied
the petitioner the right of any defence. However,
ft was only the
petitioner's own inability that prevented him from producing a valid
certificate in support of the defence, which
he intended to put up.
Had the petitioner acted diligently with reasonable foresight and
acumen he could have avoided this mishap
by having obtained the
necessary certificate in time, as and when he appeared as a witness
before the committee. In the circumstances,
the petitioner eschewing
his inability to put up his defence due to his own lapse is now
complaining of its repercussions. Hence,
as I see it, the argument of
the petitioner that "the fairest hearing is to be able to argue
that one ought not to have a
hearing against one at all" is mere
rhetoric in the given context and devoid of merits.

Besides,
one should note that even if a special defence is available to an
accused, like the petitioner in this case by virtue of
a privilege
granted by a statute, this fact, in my view, does not confer on him
any special fundamental right or special safeguard
under Article 19
of the Constitution other than the ones available to any ordinary
person charged with an offence. In other words the petitioner
has got
no special right to be treated otherwise than the ordinary accused as
far as the question of fairness is concerned. If
any other accused
person in his place cannot be given the rights under the provisions
of the Criminal Procedure Code to stay the
trial against him for want
of a defence document, then petitioner also cannot be given this
right. As a Member of the National
Assembly the privilege accorded to
him by the Act, does not exempt him from the applicability of the
Criminal Procedure Code. Once
the criminal law is set in motion it
would take its course. Having thus considered all the circumstances,
I hold there is no lack
of fairness in
the continuation of proceedings against the petitioner before the
trial court. It is to be observed that the above determination
of the
jurisdictional issue in effect has substantially disposed of this
petition. Therefore, I believe it is not necessary for
me to go
further and consider the other ancillary issues raised by the partied
in this matter.

I
would now go back to the fundamental question raised at the
beginning:

"Has
the decision of the Speaker in refusing to issue the certificate in
question contravened the petitioner's fundamental
right to a fair
hearing guaranteed under article 19 of the Constitution?" On
the strength of the reasons given above, the answer to the question
should be evident. In my judgment, the decision of the Speaker
in
refusing to issue the certificate in question has neither contravened
nor is likely to contravene the petitioner's fundamental
right to a
fair hearing guaranteed under article 19
of the Constitution. Hence, I decline to make the declaration sought
by the petitioner. Accordingly, the petition is dismissed.
I make no
order as to costs.

D.
Karunakaran Judge

Dated
this 25th
day of September 2001